Note: This guide will explain the divorce process, but the forms referred to here are available only in the print edition. For ordering information, visit the LSNJ.org publications page, e-mail publications@lsnj.org, or contact Legal Services of New Jersey at 732-572-9100.
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Chapter 1:
Preparing and Filing the Divorce Complaint
This chapter will show you how to:
- Prepare the divorce complaint and additional documents.
- File your divorce complaint and other documents with the court.
- Pay filing fees and other costs.
- Keep track of time limits and deadlines.
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Types of Divorce
New Jersey has both a no-fault divorce and a fault-based divorce. You will find forms for four kinds of divorce in this manual: forms for a no-fault divorce, based on 18-month separation (Form 1A) and based on irreconcilable differences (Form 1D), and forms for two fault-based divorces, based on desertion (Form 1B) and based on extreme cruelty (Form 1C).
This chapter will explain how to prepare and file your divorce complaint (Form 1A, 1B, 1C, or 1D) and file it with the court. We suggest that, as you read this chapter, you look at the complaint form (Form 1A, 1B, 1C, or 1D) that you will be using for your divorce. Also look at Forms 2 through 6, which you also must complete and send to the court with your complaint.
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No-Fault Divorce
No-fault divorce means that the court will end the marriage based on separation (the fact that you and your spouse have been living in different places for 18 consecutive months or more), or based on irreconcilable differences (the fact that you and your spouse have experienced irreconcilable differences for a period of six months or more). The advantage of getting a no-fault divorce is that the law does not require proof that either spouse was responsible for causing the marriage to end. See Complaint for Divorce Based on Separation and Attached Certification (Form 1A) and Complaint for Divorce Based on Irreconcilable Differences and Attached Certification (Form 1D).
To file a no-fault divorce complaint in New Jersey based on separation, the following requirements must be met:
- You or your spouse must have lived in New Jersey for 12 consecutive months preceding the filing of the divorce complaint.
- You and your spouse must have lived apart—that means in separate residences—for at least 18 consecutive months before beginning the divorce action.
- There is no reasonable prospect of reconciliation.
To file a no-fault divorce complaint based on irreconcilable differences in New Jersey, the following requirements must be met:
- You or your spouse must have lived in New Jersey for 12 consecutive months preceding the filing of the divorce complaint.
- You and your spouse must have experienced irreconcilable differences for a period of six months.
- The irreconcilable differences make it appear that the marriage should be dissolved.
- There is no reasonable prospect of reconciliation.
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Fault-Based Divorce
The other type of divorce action is a divorce based on a specific reason (ground or fault). This manual will explain how to do fault-based divorces based on desertion and extreme cruelty. Desertion and extreme cruelty are among the most common grounds for a fault-based divorce.
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Desertion. Desertion occurs when one spouse leaves the other spouse for 12 months or more against the wishes of the other spouse. A party must wait until he or she has been deserted for at least 12 months before he or she can file a complaint for divorce based on desertion. See Complaint for Divorce Based on Desertion and Attached Certification (Form 1B). To file a divorce complaint based on desertion, the following basic requirements must be met:
- You or your spouse must have lived in New Jersey for the 12 consecutive months preceding the filing of the divorce complaint.
- Your spouse must have deserted you for 12 months or more against your will.
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Extreme Cruelty. Extreme cruelty includes acts of cruelty that range from unpleasantness and emotional abuse to those involving severe physical violence. See Complaint for Divorce Based on Extreme Cruelty and Attached Certification (Form 1C). To file a divorce based on extreme cruelty, the following basic requirements must be met:
- You or your spouse must have lived in New Jersey for the 12 consecutive months preceding the filing of the divorce complaint.
- The most recent acts of cruelty you claim in the complaint must have happened at least three months before you file the complaint for divorce. For example, if you file your divorce complaint on June 1, 2007, the last act of extreme cruelty that you should put in your complaint is an event that occurred on or before February 28, 2007. This is true even if the cruelty is still going on when you file the complaint. Include all acts of abuse that occurred from the day you were married until the date that is three months before the date you sign your divorce complaint. If the abuse is ongoing, you will simply leave out the specific acts that happened in the last three months before you file.
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Other Fault-Based Grounds. Other fault-based grounds include adultery, deviant sexual conduct, habitual drunkenness or voluntary addiction to any narcotic drugs, institutionalization for mental illness, and incarceration. This manual does not provide information for divorces based on those grounds.
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Preparing Your Divorce Complaint
The complaint is the document that begins your case and presents your situation to the court. The complaint also contains what you are asking the court to order. This is called legal relief.
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Information Required by the Court
The following is a short list of the information that should appear in your complaint.
- The names and addresses of you and your spouse. (See paragraphs 1 and 6 on the complaint.)
Note to victims of domestic violence: If you are hiding from your spouse because you are afraid, you do not have to write your street address and phone number in the body of the complaint. (See paragraphs 1, 5, and 6 on Forms 1A and 1B; paragraphs 1, 6, and 7 on Form 1C; and paragraphs 1, 9, and 10 on Form 1D.) If you are afraid to disclose your address, you will need to provide a post office box number or an alternative address where you can receive mail. You should consider obtaining this alternative address through the New Jersey Address Confidentiality Program (ACP), which is a program designed to help victims of domestic violence who have relocated for their safety. The program limits the abuser’s access to information that would reveal the victim’s new location and allows the victim to receive first-class mail by way of the New Jersey Department of Community Affairs. For further information about the ACP or to register for the program, call 1-877-218-9133 or visit the New Jersey Coalition For Batterd Women's Web site. You may also register as a participant in the program by contacting your county domestic violence program. For the address or phone number of your county domestic violence program, call the New Jersey Coalition for Battered Women at 1-609-584-8107 or visit the Coalition Web site or New Jersey’s Domestic Violence Programs by County (from the NJ Department of Community Affairs Division on Women). Your alternative address goes on the top of the complaint so that the court can contact you. Depending upon the particular facts of your case, the court rules will require you to file your complaint in a county where you or your spouse now lives. (See Filing the Complaint With the Court.) If the rules require you to file your complaint in the county where you now live and you don’t feel safe even having your spouse know which county you live in, you should apply for an alternative address through the Address Confidentiality Program described above.
- The date of your marriage. (See paragraph 2.)
- The reason you are seeking or grounds on which you are basing a divorce. If you are seeking a no-fault divorce, you must state the date you and your spouse began to live separately, and where you lived when you separated. If you are seeking a fault divorce based on extreme cruelty, you must describe the acts of cruelty on which you are basing your complaint. List the dates of all acts of abuse that occurred from the day you were married until the date that is three months before you sign and date your divorce complaint. (See paragraph 3.)
- Confirmation that you have met the one-year residency requirement. (See paragraph 4 on Forms 1A and 1B, paragraph 5 on Form 1C, and paragraph 8 on Form 1D.)
- Where you lived when you had been separated from the defendant for 18 months (see paragraph 5 on Form 1A), or when the defendant had deserted you for 12 months (see paragraph 5 on Form 1B), or when the defendant committed acts of cruelty against you (see paragraph 6 on Form 1C), or when you and the defendant had experienced irreconcilable differences for a period of six months (see paragraph 9 on Form 1D).
- The names and ages of any children. (See paragraph 7 on Forms 1A and 1B, paragraph 8 on Form 1C, and paragraph 11 on Form 1D.)
- A list of any prior court actions between you and your spouse in New Jersey or in any other state where you lived—this could include court orders for adoption of children, child support, custody, visitation, or domestic violence restraining orders. Make sure to include the docket numbers of those court actions. (See paragraph 8 on Forms 1A and 1B, paragraph 9 on Form 1C, and paragraph 12 on Form 1D.)
- The relief you seek besides the divorce, such as custody, parenting time, alimony/spousal support, child support, or permission to use another name. (See the “WHEREFORE” clause of the complaint—Forms 1A, 1B, 1C, and 1D.) Remember: This is an important part of your complaint. If there is anything that you want the court to order as a part of your divorce, you must make a general request for it in this section of your complaint. For example, if you are seeking spousal support or child support, you do not need to specify a dollar amount, but you do need to let the court know that you are requesting support. You and your spouse will agree to the specific amount in a settlement agreement or the judge will make a decision later.
At the end of the complaint (Forms 1A, 1B, 1C, and 1D) is an additional statement, called a Certification of Verification and Non-Collusion, which you must sign. It states that you are making your complaint in good faith, that all the claims are true, that there are no other pending actions involving your marriage, and that no other people need to be included in this case.
Now is a good time to review all of the documents you gathered together relating to your marriage to help you decide what legal relief you will be asking for in your complaint.
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Types of Relief
You must decide what you want and ask for those things in your divorce complaint. For example, you can ask the court to:
- Grant alimony (also called spousal support). When you complete your complaint, you only need to make a general request for alimony/spousal support. You do not need to specify a dollar amount at this time.
- Divide property (also called equitable distribution):
- Divide personal property (such as furniture or cars);
- Divide real property (such as a house or land); and
- Divide debts.
You do not need to specify the details concerning division of property in your complaint.
- Allow you to change your name.
- Order that one or both parties have custody of the minor children.
- Order that one or both parties have parenting time/visitation with the children. Once again, this is a general request. You do not need to specify the details concerning custody or parenting time/visitation.
- Order child support. You do not need to specify a dollar amount in the complaint, but you do need to make a general request.
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Alimony/Spousal Support
Alimony refers to support paid by one spouse to the other to help the other spouse continue to live the way he or she lived while married. Alimony may be awarded to either party in a divorce action. The rules of alimony apply to both parties regardless of gender. Keep in mind that receiving alimony may affect your eligibility for public benefits. Please see Important Information About Doing Your Own Divorce.
There are several different types of alimony.
- Permanent alimony. Generally, permanent alimony is awarded only if the parties have been married for a very substantial time period, or if you are financially dependent or permanently unable to work because of disability or lack of skills or work experience. You may get alimony for the rest of your life or until you remarry. Either party may apply to the court after the divorce to adjust the amount of alimony when there has been a change in the parties’ circumstances.
- Limited duration alimony. You may get temporary alimony until the occurrence of a particular event, such as when you get a job. In determining how long to grant alimony, the court must consider how long it will take you to improve your earning capacity so that alimony is no longer needed. The court can change the award based on changed circumstances or if the expected event does not occur. The court can change the amount of the award but will rarely change the length of time for alimony to be paid.
- Rehabilitative alimony. You will probably get temporary rehabilitative alimony if you are likely to be able to support yourself after more education or training. You must show the specific steps for rehabilitation and the amount of time they are expected to take. This type of alimony can also be changed based upon changed circumstances.
- Reimbursement alimony. You can get this type of alimony if you supported your spouse through school or training and expected to benefit from your spouse’s increased income after finishing school.
In deciding whether or not to award alimony, the court should consider a number of factors. These include:
- The parties’ actual needs and ability to pay.
- The length of the marriage.
- The age and physical and emotional health of both parties.
- The standard of living established during the marriage and the parties’ abilities to maintain a reasonably comparable standard of living.
- The parties’ earning capacities, educational levels, vocational skills, and employability.
- The length of time the party seeking alimony has been out of the job market.
- The parental responsibilities of the party seeking alimony.
- Each party’s financial or non-financial contributions to the marriage.
- Any other income available to the parties.
- The equitable distribution of property and debts.
- The tax consequences of any alimony award.
- Any other factors the court finds relevant.
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Equitable Distribution
Equitable distribution refers to how to divide property and debts that were incurred during the marriage between the parties under New Jersey divorce laws. Property and debts are not automatically divided 50/50, although they sometimes are. In dividing property, the judge will decide what is fair. If you have a substantial amount of property, you will probably want to consult with a lawyer about equitable distribution.
Normally, decisions about dividing property and debts cannot be changed after the judgment of divorce. In unusual cases, you may be able to get a change if you can show the court that there is a very good reason to change the decision.
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Equitable Distribution of Marital Property. Equitable distribution applies only to what the court considers “marital property.” Marital property is defined as property acquired by either party during the time between the date of their marriage and the filing of a divorce complaint, with some exceptions. Generally, gifts received by one spouse from a third party and property a relative leaves to one spouse in a will are not considered marital property, as long as they are kept independent from the other spouse (not put into a joint bank account or deed in the name of the other spouse). However, a gift from one spouse to another is considered to be marital property subject to equitable distribution.
Warning: If you and your spouse have property, you may want to consult a lawyer. Also keep in mind that, if you receive property or money from your divorce, this may affect your eligibility for public benefits.
Marital property can include:
- Real property (a house or land).
- Personal property (furniture or cars).
- Severance pay, pensions (even though you may not receive the money until sometime in the future), and personal injury awards.
In deciding the issue of equitable distribution of marital property, the judge must do the following:
- Decide what property is marital property.
- Determine the value of each piece of property to be divided.
- Determine how the property will be divided between the parties.
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Equitable Distribution of Marital Debt. Marital debt is defined as any debt brought about by either party between the date of their marriage and the filing of a divorce complaint. However, the court may not consider all debt acquired during that time to be marital debt. Debt that comes from purchasing items not related to the marriage, especially purchases made after a separation, may not be subject to equitable distribution. In that situation, the court will often decide that only the spouse who incurs that non-marital debt is responsible for it.
Warning: See a lawyer if you or your spouse has significant debt.
In deciding the issue of equitable distribution of marital debt, the judge must do the following:
- Decide what debt is marital debt.
- Decide how much debt each party will be responsible for.
Generally, if the parties incur debts during the marriage, they are both potentially responsible for it. However, it may be possible to prove that a debt belongs to only one party. The other party will have to show that the debt happened after the parties stopped living together, or that the debt is for items unrelated to the parties’ relationship.
Warning: If you are separated, and your spouse is authorized to use your credit card, you will probably want to cancel that authorization even before your divorce is final.
In deciding how to divide property and debts, the court must look at a number of factors, including:
- The length of the marriage.
- The age and physical and emotional health of both parties.
- The income or property each party brought to the marriage.
- The parties’ current economic circumstances.
- Any written agreement between the parties concerning property distribution.
- The custodial parent’s need to own or use the parties’ home and household items.
- Expected future medical or educational costs for a spouse or child.
- Any other factors the court finds relevant.
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Special Considerations
Pensions and Retirement Accounts. If you or your spouse has a pension, you will probably want to consult a lawyer. To divide a pension, you will need to get a special evaluation. A pension expert must estimate the value of the pension at the time it will be paid and tell the court how to determine the amount of the pension that should go to the other spouse. The expert will prepare a Qualified Domestic Relations Order (QDRO), which will explain how to divide the pension. This order must be approved by the court. The portion of the pension that goes to the other spouse is usually based on the number of years the parties were married.
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Health Insurance. If your spouse works for an employer with 20 or more employees and his or her employer provides him or her with group health benefits, you can request that your spouse continue to cover you under his or her insurance policy for a limited time after the divorce. The law that requires employers to offer this continuation or extension of health coverage in certain instances where coverage under that plan would normally end is known as COBRA, which stands for Consolidated Omnibus Reconciliation Act of 1986, the official title of that federal law. If your spouse’s employer does not have health insurance, or is not covered by COBRA, you can request that the court order that he or she pay for the cost of insurance for you and your children.
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Personal Injury Awards. If one party was injured during the marriage, the other party may be entitled to a portion of any personal injury award based on lost earnings. This may be true even if the award is not received until after the parties are divorced. This may be the type of situation where you will need the services of an attorney in order to actually receive what you are entitled to receive. (See Getting Legal Advice.) Keep in mind that receiving a personal injury award may affect your eligibility for public benefits.
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Taking Back Your Former Name or Changing Your Name. When you get a divorce, the judge may allow either spouse to resume a former name or to take a new name. If this relief is granted, you are not required to begin using the new name. If you want to use the new name, you will need to show your final judgment to agencies such as the Motor Vehicle Commission, Social Security, and your bank.
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Relief Available for People With Children
If you have children, you will probably need to ask for additional relief in your divorce complaint concerning custody of the children, parenting time/visitation, and child support.
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Custody. If you and your spouse do not agree about child custody, the judge will have to decide this in the divorce case. The judge must decide what custody arrangement is in the child’s best interests. If you have serious concerns about who will get custody, you should talk to a lawyer.
There are two aspects of custody: legal custody and physical custody. The parent with primary legal custody is responsible for making important decisions concerning the child, such as where the child should go to school and what kind of medical care the child should get. The parent with primary physical custody is the parent the child lives with most of the time. This parent is called the custodial parent, and the other parent is called the non-custodial parent. Parents can also share custody jointly.
- Joint physical custody (also called shared physical custody). The child lives with each parent for similar amounts of time during the year. In this situation, both parents have day-to-day responsibility for the child.
- Primary physical custody. The child lives most of the time with one parent. The other parent may visit the child.
- Joint legal custody. Both parents are involved in making important decisions concerning the child’s education, medical care, and similar issues. Both have access to the child’s school and medical records.
- Primary legal custody. Only one parent is responsible for making important decisions concerning the child.
Custody arrangements can vary greatly, depending upon the needs of the children and the relationship of the parents. The court does not have to give both parents physical and legal custody. Often the parties have joint legal custody, but one party has primary physical custody. In some very rare situations, one parent will get legal and physical custody. This parent is said to have sole custody. Sole custody is ordered only where one parent is missing, absent, or found to be legally “unfit.”
Custody decisions are based on the child’s best interests. The court will look at a number of factors, including:
- The parents’ ability to agree, communicate, and cooperate.
- The child’s relationship with the parents and siblings.
- Any history of domestic violence.
- The child’s safety, needs, and preference.
- Each parent’s ability to take care of the child.
- The child’s education.
- The amount of time each parent has spent with the child.
- The parents’ employment responsibilities.
- The ages and number of children.
- Any other factors the court finds relevant.
Decisions involving custody can be changed by the court if the parties’ or children’s circumstances change.
Other issues around custody include the following:
- Parent education. In every divorce action where custody, visitation, or support of a minor child or children is an issue, the court will order the parents to attend a Parents’ Education Program to be offered twice a month through the court. There is a $25 fee to attend this program, and attendance is mandatory. The program is designed to assist and advise divorcing parents on issues concerning divorce, separation, and custody, to promote cooperation between them and assist them in resolving issues concerning their children that may arise during the divorce or separation process. The court may exempt a party from attending this program if a temporary or final restraining order, restraining either party from contact with the other, has been issued or for other good cause determined by the court.
- Custody mediation. When there is a dispute about custody or parenting time, the court will usually refer the parties to mediation to see if a court mediator can help resolve the issue. If a temporary or final domestic violence restraining order has been entered against you or your spouse, you cannot be required to participate in mediation. Likewise, if there are issues of child abuse or sexual abuse, the case will not be mediated. If circumstances require it, even after mediation has begun, the mediator or either party can petition the court for permission to remove the case from mediation by demonstrating good cause for removal. If an agreement is reached, it is memorialized in writing and a copy is given to each party. If an agreement is not reached, the case goes back to the court to be settled by way of a trial or hearing.
- Court investigations. The court can ask the probation division or other court staff to conduct an investigation of the parties and their homes and file a report with the court. This is sometimes referred to as a best interests investigation.
- Parenting plans. Unless you and your spouse agree about custody, you will both have to file a Custody and Parenting Time/Visitation Plan (Form 22) with the court within 75 days of the date the defendant answers the complaint. If the defendant files a counterclaim, you will need to file your plan within 75 days of filing your answer to the counter-claim. (See Custody and Parenting Time/Visitation Plan.)
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Parenting Time/Visitation. The non-custodial parent will almost always have visits or parenting time with the child. Visits will only be restricted if the court believes that the non-custodial parent will harm the child. Decisions about visitation are based on what is best for the child. Visitation can be changed if the parties’ or children’s circumstances change.
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Child Support. Both parents have a duty to financially support their children. Child support is financial support provided by the non-custodial parent to the custodial parent to help support the children. Child support decisions are based on New Jersey’s Child Support Guidelines, which have detailed rules for deciding how much support a parent should pay. The amount of child support ordered will depend upon the parents’ incomes, the number of children, and other factors. The child support award should include money to help pay for childcare expenses. In addition to child support, the court should make certain that the parties provide health insurance for the child. The guidelines are in the New Jersey Court Rules. The county law library in your county courthouse will most probably have a copy. Your local library may have a copy. If not, the librarian can help you find a copy.
Keep in mind that receiving child support may affect your eligibility for public benefits. Please see Important Information About Doing Your Own Divorce.
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Other Documents to Be Filed With the Complaint
The complaint must be filed with other documents. You should make five photocopies of every document you prepare. You will then send the original and two copies to the court and keep the extra two copies for your records and for later use. Once you send your papers to the court and you have received a docket number and a copy marked “filed,” you will have to write the docket number on all of your photocopies. You should also make three copies of each filed document. You may need to use these copies later.
Always include a self-addressed, stamped envelope (an envelope that has both postage and your name and address) with any documents that you send to the court so that the court can send you back a copy marked filed. You should do this even if you hand-deliver your papers to the court. You may need to know the date on which the court received something, and the filed document will have the date, time, and location of the filing on it.
All of the documents that you have to file with the complaint are explained in detail below. Please look at the forms as you read the instructions.
- Filing Letter to Court—Complaint (Form 6). Your filing letter must let the court know what you are sending and request a filed copy of the complaint and the other documents that accompany it. The filing letter must indicate whether you are paying the filing fee or seeking a fee waiver (which will only be given if you cannot afford the filing fee). Make sure to check off all appropriate statements.
- Certification of Verification and Non-Collusion (attached to complaint). This is a sworn statement that appears at the end of your complaint (Form 1A, 1B, 1C, or 1D). It lets the court know that:
- All of the claims and facts in the complaint are true.
- There is no other divorce action, or any other legal matter involving you or your spouse, presently filed in any court or arbitration proceeding. If there is some other legal matter involving you and your spouse, you must let the court know what it is.
- There are no other people who should be included in this divorce.
You have a continuing obligation to update this information if it changes during the time that the divorce is pending in court. If the information is untrue or is not updated, the court may dismiss your complaint.
- Certification of Insurance (Form 2). This is a separate form that must be attached to your divorce complaint. It lists all known insurance coverage for you, your spouse, and your minor children. This includes life, health, automobile, and homeowners insurance. Any insurance coverage identified in the certification of insurance at the time the complaint is filed must be maintained until the court orders otherwise. If you do not file this document with your complaint, the clerk may refuse to file your complaint.
- Certification of Notification of Complementary Dispute Resolution (Form 2B). This is another separate form that must be attached to your divorce complaint. It states that you have been informed about dispute resolution alternatives that you may use to settle your case. Before you sign this document, you must read the information contained in Explanation of Dispute Resolution Alternatives (Form 2A).
- Family Part Case Information Statement (CIS) (Form 3A). This must be filed with your divorce complaint if there is an issue of custody, support, alimony, or division of property and debt (equitable distribution). Even if you are not seeking these types of relief, the court may require you to complete a CIS. The CIS asks for detailed information about the financial circumstances, income, and assets of each party. The financial papers you gathered during your planning will help you give accurate information to the court about your financial circumstances. You will also have to photocopy and attach some financial documents to this form, such as tax returns and pay stubs. See the instructions on this form. It is important that this information be accurate and true.
You are required to update your CIS when and if anything changes before the divorce is final. If the court finds that the information you provided in your CIS is untrue or has not been updated, the court could dismiss your complaint or prohibit you from introducing evidence of any assets that were not listed on your CIS.
If you and your husband or wife come to an agreement or settlement that includes an award of alimony, the court rules require both of you to preserve a copy of your respective Family CIS until alimony is terminated. (The final judgment of divorce will tell both of you when alimony is to end either by giving a specific time period for alimony, or by stating that alimony will end when a certain event happens, such as the remarriage of the former husband or wife.)
If you and your husband or wife come to an agreement or settlement that includes an award of alimony and you have not filed a Family CIS, the court rules require both of you to prepare at least Part D (monthly expenses) of the Family CIS, serve a copy on each other and, once again, preserve a copy of the completed Part D until alimony is terminated.
- Confidential Litigant Information Sheet (CLIS) (Form 3B). This is a form that the court requires you to fill out and file when you file your divorce complaint if you are requesting alimony or child support as relief in your complaint. The CLIS is to be filed separately and is not to be attached to the complaint or to any other document that is filed as a public record. The CLIS provides the court with relevant updated personal information for the court’s use in establishing, modifying, or enforcing support orders. The personal information is to be used solely as a means to update the official state computer system and to provide the court with the ability to contact you if necessary. The information contained in the CLIS is to be used only by the state and only for the purpose of contacting you about your child support or alimony case. The CLIS is a confidential document. This means that it is not a public record and should not be shared with any member of the public.
Note to victims of domestic violence: To ensure your safety, if you are hiding from your spouse, you should consider obtaining an alternative address through the New Jersey Address Confidentiality Program.
- Request for Waiver of Fees and Supporting Certification (Form 4) and Order Waiving Fees (Form 5). If you cannot afford the filing fees, file Forms 4 and 5 to get permission from the court to waive the fees. (This is explained under Filing the Complaint with the Court.) You will not fill out Forms 4 and 5 if you can afford the fees for filing (and for the Parents’ Education Program if you and your spouse have children). You will simply pay the fees by check when you file your papers. You will have to call the court clerk to find out the amount of these fees.
- A self-addressed, stamped envelope. On the front of your package to the court, you should enclose an envelope containing postage and your name and address so the court can return a filed copy of the papers to you. It is very important that you have copies of your documents marked filed. You will need them for your records and for later use. The court will not send you copies of the filed documents unless you provide the self-addressed, stamped envelope.
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Filing the Complaint With the Court
Where to File Your Complaint
Where you choose to file your divorce complaint is controlled by the New Jersey Court Rules. These rules require you to first determine when your cause of action (the grounds or reason) for your divorce arose. A cause of action is said to have “arisen” when the facts of your situation meet the requirements for that cause of action. For example, if you are filing a divorce complaint based on separation, your cause of action for separation is said to have arisen at the point when you and your spouse had lived separate and apart from each other for 18 months. If you are filing your divorce complaint based on desertion, your cause of action for desertion is said to have arisen at the point when your spouse had willingly deserted you for 12 months. If you are filing your divorce complaint based on extreme cruelty, your cause of action is said to have arisen three months after the date of the last act of cruelty that your spouse committed against you as described in your complaint. The rules then require you to determine, if possible, where you were living at the time that your cause of action for divorce arose. (See Where to File Your Divorce.)
- If you were living in New Jersey at the time that your cause of action for divorce arose and you are now living in New Jersey. You must file the complaint in the county where you lived at the time that your cause of action for divorce arose, even if you now live in a different New Jersey county. (For example, if you were living in Somerset County, New Jersey, at the time that your cause of action arose but you now live in Camden County, you must file your complaint in Somerset County.)
- If you were living outside of New Jersey at the time that your cause of action for divorce arose but your spouse was living in New Jersey at that time. You must file your divorce complaint in the New Jersey county where your spouse was living when the cause of action arose. (For example, if you lived in Connecticut at the time that your cause of action for divorce arose and your spouse was living in Somerset County in New Jersey at that time, you must file your complaint in Somerset County.)
- If both you and your spouse were living outside of New Jersey at the time that your cause of action for divorce arose and you now live in New Jersey. You must file your complaint in the New Jersey county in which you are now living. (For example, at the time that your cause of action for divorce arose, you and your spouse were living in Connecticut and you now live in Somerset County, New Jersey; regardless of where your spouse now lives, you must file your divorce complaint in Somerset County.)
- If both you and your spouse were living outside of New Jersey at the time that your cause of action for divorce arose and you still live outside of New Jersey but your spouse now lives in New Jersey. You must file your complaint in the New Jersey county where your spouse now lives. (For example, if you and your spouse were both living in Connecticut at the time that your cause of action for divorce arose, and you still live in Connecticut but your spouse now lives in Somerset County, New Jersey, you must file your divorce complaint in Somerset County.)
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Filing Fee/Fee Waiver
You must pay a filing fee when you file the complaint. The filing fee is the court’s charge for the services involved in processing the complaint. As of the time of publication of this manual, the filing fee for a divorce complaint is $250. If you have minor children, you must pay an additional $25 for a Parents’ Education Program, which you are required to attend. The check must be made payable to Clerk, Superior Court. Check with your local county clerk’s office for updated information on filing fees. (See Where to File Your Divorce.)
If you cannot afford to pay the filing fee or the parent education fee, you may ask the court to waive these fees. To do so, you must file the following documents with your complaint:
- Request for Waiver of Fees and Supporting Certification (Form 4). This document explains your financial situation. You must sign the document, swearing that the statements are true.
- Order Waiving Fees (Form 5). This order states that you will not be required to submit a fee for filing. If the judge agrees with you, he or she will sign your proposed order and return a signed and filed copy of the order to you with a copy of your filed complaint.
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After Your Complaint Is Filed
- The filed copy. The court will send you back a copy of your complaint with a stamp on it that says “filed.” This copy will also have the name of the court, the date the complaint was filed, and a docket number for your case beginning with the letters “FM” (see below). If you have any questions about whether or not your document has been filed, check with the clerk’s office at the county courthouse in the county named on the document.
When you receive your filed copy, be sure to make at least three photocopies of it. You will need these copies for serving the defendant and for your records.
- Docket number. Once a docket number is given by the court, it is permanently assigned to your case. You must type or write this docket number on all of the papers you prepare that are related to the divorce action, including any letters you send out.
- The judge in your case. Usually, the Family Part or Dissolution Unit of the Superior Court will send you a notice telling you which judge will handle your case. If you do not receive this notice, you may call the court to find where your case has been assigned.
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Checklist and Table of Documents for Filing the Complaint— Forms 1 through 6
- Review your documents and package for the court to make sure that:
- You have filled in all the blanks in your complaint and in the other documents that you are sending to the court.
- Every document is signed and dated.
- You have enclosed a check for the filing fee and, if you and your spouse have children, the fee for the Parents’ Education Program, if you are not asking for a waiver of the filing fees (Forms 4 and 5).
- You have asked for everything you want the court to grant.
- You are sending an original and two copies of all documents to the court.
- You have prepared and enclosed a self-addressed, stamped envelope (an envelope with your name, address, and postage on it) for the court to use to return filed copies to you.
- You have the right amount of postage on your package. We suggest that you have your package weighed and stamped at the post office. The court will not accept mail with inadequate postage.
- You have kept at least one extra copy of all documents for your records.
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